The updated M-274, Handbook for Employers: Guidance for Completing Form I-9, from USCIS offers some interesting substantive clarifications and developments.

Changes to match the most recent Form I-9 revisions include:

  1. Section 2.0 clarifies that any person can serve as an authorized representative of the employer to complete, update, or make corrections to Section 2 or Section 3 of the Form I-9, but that the employer will remain liable for any violations. This clarification is particularly timely given the number of companies that are working remotely due to the COVID-19 pandemic and the stay-at-home orders in response. Outside of the M-274 context, ICE had temporarily given companies the flexibility to conduct the I-9 process to accommodate work-from-home or remote-work situations.
  2. Section 12.0 explains that the List B “ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address” is not the same as a List B driver’s license.
  3. Section 12.0 clarifies that List C employment authorization documents issued by the Department of Homeland Security are not the same as the List A Form I-766, Employment Authorization Document, that demonstrates both identity and work authorization.

Changes in the Guidance include:

  1. Sections 4.4 and 6.4.2 clarify that employers should enter automatic extensions of documents in the “Additional Information” field in Section 2, instead of crossing out and initialing the date listed in the “Alien authorized to work until” field of Section 1. USCIS believes this will be a more legible way of handling the issue for audit purposes.
  2. Section 6.4.2 notes that for cap-gap extension situations, employers should enter the receipt number from the Form I-797C, Notice of Action, as the Document Number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required.

The USCIS new explanations include:

  1. Section 4.4 explains how to complete Form I-9 with EADs automatically extended by Federal Register notices, such as TPS automatic extensions.
  2. Section 6.2 supplies guidance regarding Native Americans born in Canada.
  3. Section 7.1 explains specific rules that apply when an employee is referred from a state employment agency or a state workforce agency.

Other clarifications include:

  1. Section 3.0 explains how to complete the Preparer/Translator Supplement whether using the paper form or a computerized form.
  2. Section 6.4.2 explains what is required and how to fill in the “Alien authorized to work until” expiration date in Section 1 for a cap-gap employee. The date in Section 1 should be September 30 of the year the change of status was filed.
  3. Sections 9.0-9.2 clarify retention and electronic Form I-9 requirements.
  4. Section 10 reviews prohibited practices and penalties.

Jackson Lewis attorneys are available to assist you with any I-9, E-Verify, or other compliance issues, including temporary policy changes related to COVID-19.